Mandatory Body Fluid Samples Loom for Drivers Suspected of Being High

By
Janice Tibbetts, Canwest News Service
on June 25, 2008

Police will be looking for signs of drug useOTTAWA – Drivers who get behind the wheel while high on drugs will face roadside testing and they could be ordered to surrender urine, blood or saliva samples at the police station under a controversial new law that takes effect July 2. Drivers who refuse to comply will be subject to a minimum $1,000 fine — the same penalty for refusing the breathalyzer. Police will be given their new powers to nab drug-impaired drivers after almost five years of intense debate in the federal Parliament.
The law, passed this year after three failed attempts, has been lauded by law enforcement and groups who say drug-induced drivers are escaping unpunished at a time when their numbers are climbing. “Love it,” said Gregg Thomson, a father from Kanata, Ont., who predicted Tuesday that the new testing will deter people from driving under the influence of drugs, just as the breathalyzer test produced a drop in drunk driving. Thomson has been lobbying for a new law since 1999, when his son, Stan, and four of his high-school friends were killed when a 17-year-old who had been smoking marijuana attempted a highway pass that led to a pileup. The crash became a catalyst for the group Mothers Against Drunk Driving to start pushing for changes to the Criminal Code, which outlaws drug-impaired driving but until now has not included measures that allow police to order a battery of tests.

The new law, however, has sparked warnings about potential court battles from critics who contend that demanding bodily fluids is overly intrusive and scientifically unreliable in detecting drug impairment. “This is going to be challenged left and right,” predicted Murray Mollard, executive director of the British Columbia Civil Liberties Association. Beginning next Wednesday, drivers suspected of being high will be required to perform physical tests at the side of the road, such as walking a straight line. If they fail, they will be sent to the police station for further testing by a trained “drug recognition expert” and then be forced to give blood, urine, or saliva samples if they flunk the second test as well.

Critics say the new law could cause more problems that it solves, particularly because there is no reliable scientific test to detect drug use. Also, while there is a measurable link between blood alcohol levels and driving ability, research is lacking to equate drug quantity and impairment. Another potential problem in testing bodily fluids is that they can detect marijuana smoked several days or months earlier and the effect has worn off. “This kind of testing doesn’t test for impairment, it tests for past use of a substance and we know with certain substances they stay for a long time,” said Mollard. Federal privacy commissioner Jennifer Stoddart and the Canadian Bar Association have also raised alarm bells.

Testing is already happening in Quebec, Manitoba, and British Columbia — but only when the driver voluntarily participates. But that hardly ever happens because nobody “is going to consent to pee in a bottle” when they are not legally required, said Andy Murie, chief executive officer of Mothers Against Drunk Driving.

The number of Canadians who say they have driven after smoking drugs has almost doubled since the late 1980s, according to a study released 18 months ago by the Canadian Centre on Substance Abuse, which reported young men drive while high just as often, or even more, than they drink and drive. But the federally sponsored agency said research remains inconclusive on whether the hike in drug-impaired driving has contributed to car crashes causing injuries or death, largely because of the poor rates of testing for drugs other than alcohol.

Other new laws also take effect next week. Minimum fines for impaired drivers will rise to $1,000 from the current $600. For a second offence, the minimum jail time would be doubled from the current 14 days to 30, and from 90 days to 120 days for a three-time offender. The federal government is also eliminating the so-called “two-beer defence” that has permitted people charged with impaired driving to argue that they couldn’t have been under the influence because they didn’t drink enough. The new law will make the breathalyzer test virtually infallible, unless an accused can prove that the machine malfunctioned.